Tarelli &Langley (No 2) - [2024] FedCFamC1F 163

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tarelli &Langley (No 2) [2024] FedCFamC1F 163

File number(s): PAC 4311 of 2014

Judgment of: BERMAN J

Date of judgment: 28 February 2024

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – COSTS – Circumstances justifying order – Where the father seeks costs – Where the mother did not attend the hearing and sought an adjournment – Adjournment application in an incompetent form – Where the cost application will not take the mother by surprise – Where the mother’s opposition to the orders is wholly unsuccessful – Cost order made.

Legislation: Family Law Act 1975 (Cth) s 117

Cases cited:
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27

Buljubasic v Buljubasic (1999) FLC 92-865

Tarelli & Langley [2023] FedCFamC1F 386

Division: Division 1 First Instance

Number of paragraphs: 43

Date of hearing: 27 & 28 February 2024

Place: Sydney

Counsel for the Applicant: Mr Shaw

Solicitor for the Applicant: F W Ewart & Ewart

Counsel for the Respondent: The Respondent did not appear
ORDERS

PAC 4311 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR TARELLI

Applicant

AND:
MS LANGLEY

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

28 FEBRUARY 2024

THE COURT ORDERS THAT:
1.Pursuant to Rule 10.13(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the orders made by the Honourable Justice Berman on 18 May 2023 be amended by adding to paragraph 1, the following:
(a)"In addition to the foregoing, the mother shall pay to the Trust Account of F W Ewart & Ewart for and on behalf of Mr Tarelli ("the father") the sum of $9,251.32, being the amount owed by the father to BZ Council, and the sum of $3,915.97, being the amount currently owed to Sydney Water, making a total of $13,167.29 to be added to the sum of $51,308.00 ("the settlement sum") (totalling the sum of $64,475.29) (“the new settlement sum”) be paid within 90 days of the 27th November 2023."

THE COURT FURTHER ORDERS THAT:
2.The respondent pay to the applicant costs assessed in the sum of FOUR THOUSAND EIGHT HUNDRED AND SIXTY SIX DOLLARS AND NINETY SEVEN CENTS ($4,866.97) including GST within 60 days of the date of this order.
3.The Applications in a Proceeding filed 26 February 2024 and 27 February 2024 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tarelli &Langley (No 2)

Details

AGLC: Tarelli &Langley (No 2) [2024] FedCFamC1F 163
Case: [2024] FedCFamC1F 163
Decision Date: 28 February 2024

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard an application by Mr Tarelli against Ms Langley concerning costs and the enforcement of a settlement agreement. The dispute centred on whether Mr Tarelli was entitled to an order for costs against Ms Langley, given her failure to attend a hearing and her unsuccessful opposition to the application. Ms Langley had not only failed to appear but also lodged an adjournment application in an improper form. Mr Tarelli sought an order for costs based on these circumstances.

The court had to determine whether the circumstances justified an order for costs against Ms Langley. It considered the impact of her non-attendance and the procedural errors in her adjournment application. The court also noted that the cost application would not take Ms Langley by surprise and that her opposition to the orders was wholly unsuccessful. The court found that these factors warranted a cost order in Mr Tarelli's favour.

The court granted Mr Tarelli's application for costs, ordering Ms Langley to pay $4,866.97 including GST within 60 days. The court also dismissed Ms Langley's recent applications for adjournment. Additionally, the court ordered that Ms Langley pay certain outstanding debts to be added to the settlement sum, making a new total of $64,475.29, to be paid within 90 days of 27 November 2023.

Orders

Orders of the court

PAC 4311 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR TARELLI

Applicant

AND:

MS LANGLEY

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

28 FEBRUARY 2024

THE COURT ORDERS THAT:

1. Pursuant to Rule 10.13(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the orders made by the Honourable Justice Berman on 18 May 2023 be amended by adding to paragraph 1, the following:

(a) "In addition to the foregoing, the mother shall pay to the Trust Account of F W Ewart & Ewart for and on behalf of Mr Tarelli ("the father") the sum of $9,251.32, being the amount owed by the father to BZ Council, and the sum of $3,915.97, being the amount currently owed to Sydney Water, making a total of $13,167.29 to be added to the sum of $51,308.00 ("the settlement sum") (totalling the sum of $64,475.29) (“the new settlement sum”) be paid within 90 days of the 27th November 2023."

THE COURT FURTHER ORDERS THAT:

2. The respondent pay to the applicant costs assessed in the sum of FOUR THOUSAND EIGHT HUNDRED AND SIXTY SIX DOLLARS AND NINETY SEVEN CENTS ($4,866.97) including GST within 60 days of the date of this order.

3. The Applications in a Proceeding filed 26 February 2024 and 27 February 2024 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	PAC 4311 of 2014
Judgment of:	BERMAN J
Date of judgment:	28 February 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – COSTS – Circumstances justifying order – Where the father seeks costs – Where the mother did not attend the hearing and sought an adjournment – Adjournment application in an incompetent form – Where the cost application will not take the mother by surprise – Where the mother’s opposition to the orders is wholly unsuccessful – Cost order made.
Legislation:	Family Law Act 1975 (Cth) s 117
Cases cited:	Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Buljubasic v Buljubasic (1999) FLC 92-865 Tarelli & Langley [2023] FedCFamC1F 386
Division:	Division 1 First Instance
Number of paragraphs:	43
Date of hearing:	27 & 28 February 2024
Place:	Sydney
Counsel for the Applicant:	Mr Shaw
Solicitor for the Applicant:	F W Ewart & Ewart
Counsel for the Respondent:	The Respondent did not appear

PAC 4311 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR TARELLI Applicant
AND:	MS LANGLEY Respondent

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	28 FEBRUARY 2024